Duties Amendment Act 2001
An Act to amend the Duties Act 2001
[Royal Assent 17 December 2001]
Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows:
This Act may be cited as the Duties Amendment Act 2001 .
(1) Sections 4 , 7 , 8 , 9 , 10 , 11 , 12 , 13 , 14 , 15 and 24 are taken to have commenced on 1 July 2001.(2) Sections 17 and 18 commence on 1 March 2002.(3) The remaining provisions of this Act commence on the day on which this Act receives the Royal Assent.
In this Act, the Duties Act 2001 is referred to as the Principal Act.
4. Section 3 amended (Interpretation)
Section 3 of the Principal Act is amended as follows:(a) by omitting paragraph (a) from the definition of farming company and substituting the following paragraph:(a) the shares of which are not quoted on the Australian Stock Exchange or a recognised stock exchange; and(b) by inserting the following definition after the definition of life insurance :loan-backed security means –(a) an instrument or property creating, conferring or comprising a right or interest (whether described as a unit, bond or otherwise) of, or on, a beneficiary in a scheme under which any profit, distribution of capital or income in which beneficiaries participate arises from the acquisition, holding, management or disposal of a pool of loans, or any instrument which evidences such a right or interest; or(b) a debt security –(i) the payments under which by the person that issues or makes the instrument are derived substantially from the acquisition, holding, management or disposal of a pool of loans; and(ii) that is secured by a mortgage or charge over a pool of loans; or(c) an instrument of a class or description of instruments or property of a class or description of property prescribed to be a loan-backed security;(c) by inserting "as referred to in Chapter 6 " after "a mortgage" in the definition of mortgage duty ;(d) by inserting the following definitions after the definition of mortgage duty :mortgage-backed security means –(a) an interest in a trust that entitles the holder of, or beneficial owner under, the interest –and that, in addition, may entitle the holder or beneficial owner to a transfer or assignment of the mortgage or mortgages; or(i) to the whole or any part of the rights or entitlements of a mortgagee and any other rights or entitlements in respect of a mortgage or any money payable by the mortgagor under the mortgage (whether the money is payable to the holder or beneficial owner on the same terms and conditions as under the mortgage or not); or(ii) to the whole or any part of the rights or entitlements of a mortgagee and any other rights or entitlements in respect of a pool of mortgages or any money payable by mortgagors under those mortgages (whether the money is payable to the holder or beneficial owner on the same terms and conditions as under the mortgages or not); or(iii) to payments that are derived substantially or to any prescribed extent from the income or receipts of a pool of mortgages –(b) a debt security (whether or not in writing), the payments under which by the person who issues or makes the debt security are derived substantially or to a prescribed extent from the income or receipts of a pool of mortgages; or(c) any of the following:but does not include an instrument or property comprising –(i) an interest in a trust creating, conferring or comprising a right or interest (whether described as a unit, bond or otherwise) of, or on, a beneficiary in a scheme under which any profit or income in which the beneficiaries participate arises from the acquisition, holding, management or disposal of prescribed property, or any instrument that evidences such a right or interest;(ii) a security (whether or not in writing), the payments under which by the person who issues or makes the security are derived substantially from the income or receipts of prescribed property;(iii) an interest in a trust, a debt security (whether or not in writing), an instrument or property that creates an interest in or charge over an interest in a trust, a debt security (whether or not in writing) or other instrument or property to which paragraph (a) or (b) or subparagraph (i) or (ii) of this paragraph applies –(d) a mortgage; or(e) the transfer of a mortgage; or(f) a declaration of trust; or(g) an instrument of a class or description of instruments or property of a class or description of property prescribed not to be a mortgage-backed security;mortgage package means a mortgage package referred to in section 150 ;(e) by inserting the following definition after the definition of policy of mortgage insurance :pool of mortgages means a pool or collection of assets –(a) that is comprised solely of mortgages; or(b) that is comprised substantially or to a prescribed extent of mortgages or of money paid pursuant to mortgages (whether or not that money has been invested in prescribed property) or of money (whether or not that money has been invested in prescribed property) if the primary investment policy is to invest in mortgages, but that may also contain either or both of the following:(i) prescribed property;(ii) any other property that forms part of the pool or collection of assets for the purpose of issuing or making a mortgage-backed security in relation to the pool of mortgages;
5. Section 56 amended (Exemptions – break-down of marriages)
Section 56(1)(b) of the Principal Act is amended by inserting after subparagraph (i) the following subparagraph:(ia) a financial agreement made under section 90B, 90C or 90D of that Act; or
6. Section 72 amended (Exemptions)
Section 72(1)(f) of the Principal Act is amended by inserting after subparagraph (i) the following subparagraph:(ia) a financial agreement made under section 90B, 90C or 90D of that Act; or
7. Section 142 amended (When does a liability arise?)
Section 142 of the Principal Act is amended as follows:(a) by inserting in subsection (2) "under this Act or a corresponding Act" after "of it";(b) by omitting subsection (3) and substituting the following subsection:(3) An instrument of security that does not affect property in Tasmania at the date of first execution but affects land in Tasmania at any time within 12 months after that date becomes liable to duty as a mortgage on the date on which it first affects the land unless it is duly stamped under a corresponding Act.
8. Section 145 substituted
Section 145 of the Principal Act is repealed and the following section is substituted:145. Extent mortgage is enforceable
(1) A mortgage or mortgage package on which duty is imposed under this Act or a corresponding Act is enforceable only to the extent of the amount secured by the mortgage or mortgage package in respect of which duty has been paid under this Act or a corresponding Act.(2) Subsection (1) does not apply if the property affected by the mortgage package is partly in and partly outside Tasmania if –(a) duty has been paid on the total advances under the mortgage or mortgage package when the mortgage duty paid is taken with the duty paid under a corresponding Act; and(b) the proportion of that property in Tasmania used to determine mortgage liability –(i) is based on a referrable point as referred to in section 149(4) for the dutiable proportion of the mortgage; and(ii) is not incorrect by more than 5%.
9. Section 147 amended (Secured amount)
Section 147 of the Principal Act is amended as follows:(a) by omitting from subsection (1) "actually";(b) by omitting subsection (3) and substituting the following subsection:(3) For the purpose of subsection (1) , if –the amount of advances secured by the mortgage is the amount by which the amount of advances secured by the mortgage exceeds the amount for which the mortgage has been duly stamped.(a) a mortgage has been duly stamped for an amount of advances secured by the mortgage; and(b) a further advance secured by the mortgage is made; and(c) the total amount of advances secured by the mortgage exceeds the amount for which the mortgage has been duly stamped –
10. Section 149 amended (Mortgages over property not wholly within Tasmania)
Section 149 of the Principal Act is amended as follows:(a) by omitting from subsection (4) "date referred to in section 142(1) or (2) " and substituting "liability date";(b) by omitting from subsection (6) "date referred to in section 142(1) or (2) " and substituting "liability date".
11. Section 150 amended (Advances secured by mortgage package)
Section 150 of the Principal Act is amended as follows:(a) by omitting subsection (1) and substituting the following subsection:(1) A mortgage package is –(a) 2 or more security instruments –(i) that, at a liability date, secure or partly secure the same money; and(ii) at least one of which is a security affecting property wholly or partly outside Tasmania; and(iii) at least one of which is a mortgage; or(b) a mortgage executed after the liability date if the Commissioner is satisfied that the mortgage was intended to be part of the package.(b) by omitting from subsection (5) "and section 149(8) and (9) apply to the statement".
12. Section 151 amended (Stamping before advance)
Section 151(4) of the Principal Act is amended by omitting " Section 150(6) and (7) apply" and substituting " Section 150(7) applies".
13. Section 153 amended (Collateral securities)
Section 153 of the Principal Act is amended by omitting subsection (1) and substituting the following subsections:(1) Mortgage duty is not chargeable in respect of that part of the amount secured by a collateral mortgage that is secured by –(a) a mortgage or security instrument that is duly stamped under this Act or a corresponding Act; or(b) a mortgage package that has been duly stamped under section 150 or a corresponding Act.(1A) A collateral mortgage that no longer secures the amount secured by a mortgage, security instrument or mortgage package mentioned in subsection (1) is not security for another advance unless mortgage duty for the amount of the other advance is paid.
14. Section 157 amended (Refinancing of loans)
Section 157(1) of the Principal Act is amended by omitting "outstanding balance of" and substituting "balance outstanding of the loan secured by".
15. Section 167 amended (Who is liable to pay the duty?)
Section 167 of the Principal Act is amended by omitting "general".
16. Section 196 amended (When does duty become payable?)
Section 196(a)(i) of the Principal Act is amended by inserting "or the registration is transferred" after "registered".
17. Section 197 amended (What is the rate of duty?)
Section 197 of the Principal Act is amended as follows:(a) by omitting from subsection (1) " subsections (2) and (3) " and substituting " subsections (2) , (3) and (3A) ";(b) by inserting the following subsection after subsection (3) :(3A) The rate of duty for a new motor vehicle for which a manufacturer's fleet discount has been provided is $3.50 per $100, or part.(c) by inserting the following subsection after subsection (5) :(6) A manufacturer's fleet discount in respect of a motor vehicle is a discount –(a) that is given to the purchaser of the vehicle by the manufacturer of the vehicle; and(b) that is deducted from the normal retail price of the vehicle; and(c) that is not available to the general public.
18. Section 198 amended (What is the dutiable value of a motor vehicle?)
Section 198 of the Principal Act is amended by inserting after subsection (1) the following subsection:(1A) The dutiable value of a new motor vehicle is the consideration in money or money's worth given for the acquisition of the motor vehicle, if the Commissioner is satisfied that the consideration is adequate in relation to the value of that motor vehicle.
19. Section 199 amended (Exemptions)
Section 199 of the Principal Act is amended as follows:(a) by inserting in paragraph (c)(ii) ", a financial agreement made under section 90B, 90C or 90D of that Act" after "Commonwealth";(b) by inserting in paragraph (e) "or a notice of change of beneficial ownership of a motor vehicle" after "register a motor vehicle".
20. Section 203 amended (Refund if contract, arrangement or agreement cancelled)
Section 203 of the Principal Act is amended by inserting ", the transfer of registration of a motor vehicle" after "a motor vehicle".
21. Section 222 amended (Miscellaneous instruments)
Section 222(1) of the Principal Act is amended as follows:(a) by omitting from paragraph (a) "ad valorem" and substituting "any other";(b) by inserting in paragraph (f) ", other than a guarantee solely in relation to the payment or repayment of any money" after "undertaking".
22. Section 223 amended (Consumer credit contracts)
Section 223(2) of the Principal Act is amended as follows:(a) by omitting from paragraph (a) "less" and substituting "not more";(b) by omitting from paragraph (b) "$1 000 or more" and substituting "in excess of $1 000".
23. Section 227 amended (Miscellaneous exemptions)
Section 227(1) of the Principal Act is amended by inserting after paragraph (j) the following paragraph:(ja) a duplicate instrument required under the Land Titles Act 1980 , if the original instrument or a copy of the original instrument has been duly stamped;
24. Sections 227A , 227B and 227C inserted
After section 227 of the Principal Act , the following sections are inserted in Part 2:227A. Mortgage-backed securities
(1) Duty under this Act is not chargeable in respect of a mortgage over the interest of a person in a pool of mortgages relating to debt securities that are mortgage-backed securities issued by the person to secure the repayment of financial accommodation provided to the person.(2) Duty under this Act is not chargeable in respect of a mortgage of a mortgage, a pool of mortgages or part of a pool of mortgages in connection with creating, issuing, marketing or securing a mortgage-backed security.(3) Duty under this Act is not chargeable in respect of –(a) the issue or making of a mortgage-backed security; or(b) the transfer or assignment of, or other dealing with, a mortgage-backed security; or(c) the discharge, cancellation or termination of a mortgage-backed security.(4) Duty under this Act is not chargeable in respect of a mortgage of a mortgage, a pool of mortgages or part of a pool of mortgages for the purpose of creating, issuing, marketing or securing a mortgage-backed security –if the mortgage is executed on or after 1 July 2001.(a) to a person entitled to a mortgage-backed security or a trustee or agent for such a person; or(b) by or to a person who issues, makes or endorses a mortgage-backed security; or(c) to a person who provides security (whether as a guarantor, surety or otherwise) to a person entitled to a mortgage-backed security or a trustee or agent for such a person –227B. Instruments issued for purpose of creating, issuing or marketing mortgage-backed securities
Duty under this Act is not chargeable on an instrument that, in the opinion of the Commissioner, was executed for the purpose of creating, issuing or marketing mortgage-backed securities.(1) Duty is not chargeable in respect of an instrument that is, or effects, any of the following:(a) the issue or making of a loan-backed security;(b) the transfer or assignment of, or other dealing in, a loan-backed security;(c) an instrument that, in the Commissioner's opinion, was executed for the purpose of creating, issuing or marketing loan-backed securities;(d) a mortgage over the interest of a person in a pool of loans, being a mortgage relating to loan-backed securities issued by the person to secure the repayment of financial accommodation provided to the person;(e) a policy of insurance covering any or all assets in a pool of loans acquired or held for the purpose of issuing loan-backed securities, but only so far as the instrument relates to loan-backed securities.
25. Section 252 amended (Loans to pay duty on certain instruments)
Section 252(1) of the Principal Act is amended by omitting " Chapters 2 or 6 " and substituting " Chapter 2 , 6 or 9 ".
26. Schedule 1 amended (Savings and transitional provisions)
Schedule 1 to the Principal Act is amended as follows:(a) by omitting from clause 5(2) "an approved" second occurring and substituting "a registered";(b) by inserting the following subclause after subclause (3) in clause 6 :(4) Despite subclause (3) , if –duty on the mortgage is assessable in accordance with item 3(f) of Schedule 4 to the former Act.(a) an advance was made under a mortgage over property partly within and partly outside Tasmania before the commencement day; and(b) the mortgage is not duly stamped under the former Act before that day –
[Second reading presentation speech made in:
House of Assembly on 27 NOVEMBER 2001
Legislative Council on 29 NOVEMBER 2001]